Court of Appeals of Texas, Sixth District, TexarkanaFeb 21, 2007
No. 06-06-00102-CR (Tex. App. Feb. 21, 2007)

No. 06-06-00102-CR

Date Submitted: February 20, 2007.

Decided: February 21, 2007. DO NOT PUBLISH.

On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 05F0380-005.

Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice Carter.



Demarcus Whetstone appeals from his conviction by a jury of injury to a child. See Tex. Penal Code Ann. § 22.04 (Vernon Supp. 2006). The jury found Whetstone intentionally or knowingly caused serious bodily injury and assessed punishment at forty-five years' imprisonment. Whetstone contends on appeal the evidence is legally and factually insufficient to support the jury's finding that he intentionally or knowingly caused serious bodily injury to the child. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006); see also Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). Whetstone was a friend of the child's mother, Latasha Bannister. Bannister testified that she had asked Whetstone to babysit while she took her Civil Service Examination and that Whetstone had babysat for and bathed the child, Isaiah, on several previous occasions. She further testified she trusted Whetstone with Isaiah and believed Whetstone cared for her and her child. The evidence shows that, during the time Whetstone was babysitting on this occasion, he took eight-month-old Isaiah to the emergency room for burns on his back, buttocks, and genitals. Dr. Robert Fry, the attending physician at the emergency room, testified that the burn was a serious injury, possibly life threatening, and that Isaiah had suffered full thickness second-degree burns over approximately twenty percent of his body. Fry further testified that individuals are given a pain threshold score when they are brought into the emergency room and that Isaiah's pain threshold score was ten on a scale of one to ten. Fry stated he was told by Whetstone at the emergency room Isaiah had tipped over a mop bucket and spilled hot water down his back, but that he saw no splash pattern of burning anywhere on Isaiah's body and did not believe an eight-month-old child could pull a mop bucket over on himself and sustain injuries to his back. Dr. Jerry Jones, a pediatrician employed by Arkansas Children's Hospital in Little Rock, Arkansas (where Isaiah was air-lifted from Texarkana), testified that the line of clear demarcation of Isaiah's burns was consistent with a child being held in place in hot water. Jones stated these burns were "typical emersion [sic] burns, and the lack of splash marks and the constancy of the demarcation between the non-burned areas is classical for an intentional emersion [sic] of a child in hot water." Detective Kevin Schutte testified that, when he and another officer investigated, they found a bucket with a mop in it; there was a small amount of wetness on the bottom of and underneath the bucket, but no spill or puddle. They found dust around the mop bucket, and the mop itself was not very damp. There were no wet towels found anywhere in the apartment. Schutte also testified they found a plastic infant tub used to bathe small children. It was the type of tub contoured for an infant and made to help hold an infant in place while he or she was being bathed. There was a pool of water in the bottom of the tub. The contour of the tub matched the pattern of burns on Isaiah's back. Schutte further testified the water heater in the apartment was set at its highest setting. Schutte stated that, when he confronted Whetstone, he changed his story from saying that Isaiah had tipped over a mop bucket to saying that he (Whetstone) had accidently burned Isaiah while giving him a bath and did not realize Isaiah was burned until he started to dry Isaiah after the bath. He also testified that Whetstone originally told him the child was not crying, but then told him that the child continued to cry, and he was unable to stop the child from crying — that the baby's continuous crying made him mad. Whetstone testified in his own defense. He testified he had given Isaiah a bath that day because Isaiah had dirtied his diaper. He further testified that he was not mad at the child and that he loved Isaiah like he was his own son. He also testified he had told the doctor at the emergency room the burn had happened due to a mop bucket, but that he made up the story because he was scared. Whetstone further testified that he had tested the water in the tub and that it did not feel hot to him. He said he left Isaiah in the tub where he could see him and went out to smoke a cigarette for about twenty minutes. He did not realize Isaiah was burned until Isaiah turned over; he said the burn did not look that bad. Whetstone testified that he did not intend to hurt Isaiah, that he made a mistake by not checking the water at the right time and by putting too much hot water and not enough cold into the tub. He stated that Isaiah was playing with a rubber duck, and was not crying while he was in the tub. Whetstone testified that, after he saw the burns, he took Isaiah to a neighbor's house, who told him to take the baby to the hospital. We recognize that, in our review of the evidence, we must defer to the jury's findings and may not substantially intrude on the fact-finder's role as the sole judge of the weight and credibility of the witnesses. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997); Mosley v. State, 141 S.W.3d 816 (Tex.App.-Texarkana 2004, pet. ref'd). Intent may be directly proven, or it may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004). Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). It is not necessary that each bit of circumstantial evidence by itself directly and independently prove guilt; instead, what is needed is that the cumulative force of all circumstances establish guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987). The jury heard: (1) conflicting statements by Whetstone as to how the child was injured — he first told the doctor the child accidentally turned over a bucket of hot water, but later stated the child was accidentally burned during a bath; and (2) testimony of Dr. Jones that, if a child is accidentally placed in hot water, you would expect a lot of thrashing about, causing a wavering of burn demarcation between burn and skin. Here, the lack of splash burns and clear demarcation between burned skin and normal skin was consistent with a child being held down in hot water. The jury had the opportunity to hear the medical testimony about the cause, nature, and severity of the injuries, and reviewed photographs showing the child's burns. The jury observed the demeanor of the witnesses and judged the weight and credibility of their testimony. There was evidence that the child would have been (and was) screaming in pain and that the line of demarcation of the burn was so precise as to suggest that he may have been forcibly held in place. Weighing all the evidence in a neutral light, both in support of and against the finding, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. The evidence is legally and factually sufficient to support the verdict. We affirm the judgment.

A person commits the offense of injury to a child if he or she "intentionally, knowingly, recklessly, . . . causes to a child . . . (1) serious bodily injury." Tex. Penal Code Ann. § 22.04(a).

Dr. Fry testified that a full thickness second-degree burn involves all of the full layer, that it is "right down to the part where you would say it's a third degree burn, but it's not through the entire dermis yet."